HKSAR v. ZHANG RENJUN

DCCC 150/2021

[2021] HKDC 637

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 150 OF 2021

________________________

________________________

________________________

Reasons for Sentence

________________________

1.  The defendant has pleaded guilty to two offences of burglary. The first between 20 October 2020 and 23 November 2020 and the second on 29 November 2020.

2.  The premises in respect of the first burglary are in Tseung Kwan O and they were secured on 20 October 2020.  It is a residential premises.  The premises were next inspected on 23 November 2020 when it was found that the secured metal gate had been opened and a wooden door had also been prised and left ajar.  Nothing was taken at the premises.  Although fingerprints and palm prints were lifted. 

3.  The second offence occurred on 29 November 2020 at the Sunshine House International Pre-school in Clear Water Bay.  Access to those premises via main door and a side door of the premises.  It would appear the side door was unlocked whilst tile repair work was taking place.  It was found on 30 November that a MacBook Pro had been taken from the premises. 

4.  A review of CCTV footage during the course of investigation showed the presence of the defendant and the defendant was seen on the CCTV to have pushed open the side door of the premises and entered it. He was also seen on the CCTV inside the premises and was identifiable from that.  The defendant was apparently working nearby at the time at the supermarket and the defendant admits that he walked into the premises and took the laptop. 

5.  The defendant was arrested for the offence at the Silverstrand Mart.  He admitted that he had stolen the laptop out of greed and it was placed inside his premises.  The defendant’s home was searched and the laptop was recovered from the defendant’s bed. 

6.  Defendant went on to make some further admissions in respect of that second offence.  When the defendant was arrested for the first offence, he said that he had entered the premises because he knew that his godfather was in prison so he prised open the door to see if there are any valuables.  He, in his cautioned interview, he said that his ex-wife’s godmother had told her that the person who lived in the premises was in prison.  The defendant had, a few days before the incident, gone up to the location and pressed the doorbell to see if there was anybody inside.  In early November, he used a screwdriver to prise his way into the premises and he pushed open the wooden main door, causing the lock to fall off.  The defendant had looked around but there was nothing to steal inside the premises and he stole nothing. 

7.  The defendant’s antecedent show that he is 36 years old.  He is single but is in a relationship.  He has previous convictions in 2013 in respect of drug offences, there is no similar offences.  At the time of the offences, defendant was working as a delivery worker, earning some $10,000. 

8.  It is the case in respect of both residential and non-residential premises there are guideline sentences.  The normal starting point for a burglary of a residential premises would be 36 months’ imprisonment and for a non-residential premises, 30 months’ imprisonment.  The premises in the 1st charge are residential and in the 2nd charge a non-residential. 

9.  The defence submit that the circumstances of these offences enable the court to depart from the guideline sentences.  In the 1st charge, it is said that the premises were vacant and known to be vacant before the defendant entered into it.  This reduces the risk of any confrontation of the occupants in the premises and can be a ground for reduction of the starting point from the 36 months’ imprisonment.  Furthermore, nothing was stolen from the premises although damage was caused in order to gain entry to the premises. 

10.  In the 2nd charge, it is said that this a burglary of a walk-up kind, an opportunistic burglary.  It has been said in the case of HKSAR v Sim Ka Wing, CACC 450/2000 that the conventional starting point of 2½ years’ imprisonment for the burglary of a non-domestic premises relates to burglary with no aggravating or mitigating factors.  The conventional starting point can be lowered in the case of an opportunistic burglar akin perhaps to a sneak thief that walks into an open office to steal whatever he can find.  In this case, the facts show the defendant had entered into the school through an unlocked side door and had taken something he had found inside.  It is akin to an opportunistic burglary. 

11.  Having borne those factors in mind, in respect of the first burglary and Charge 1, I find that the premises were unoccupied at the time of the burglary.  The defendant had ascertained that to be the case both through inquiry and through observation.  Although damage was caused to the premises, no items were taken.  I find that this does permit me to depart from the normal starting point of 36 months’ imprisonment.  So on the 1st charge I will take a starting point of 27 months’ imprisonment and reduce that to 18 months’ imprisonment for the defendant’s plea of guilty. 

12.  As far as the 2nd charge is concerned, it does appear on face of the facts the defendant has admitted that this was a walk-up burglary of an opportunistic kind.  I should take a starting point of 24 months’ imprisonment and reduce that to 16 months’ imprisonment for the defendant’s plea of guilty. 

13.  The burglaries are part of a sequence of burglaries and although this is the defendant’s first burglary, there are no other aggravating factors present in this sequence of burglaries.  I have decided that at least part of the sentences should be served consecutively.  I shall order the 6 months of the 2nd charge to be served consecutive to the 1st charge, giving an overall total of 24 months’ imprisonment for these two offences.